Knowing the One‑Year Deadline Undercuts “Extraordinary Circumstances”; Family Affidavits Are Reasonably Obtainable Corroboration — Deleg‑Penaranda v. Garland (2d Cir. 2024)

Note: This is a Second Circuit Summary Order issued on December 4, 2024. Under FRAP 32.1 and Local Rule 32.1.1, it is non‑precedential, but it provides instructive guidance on common issues in asylum timeliness and corroboration for withholding/CAT.

I. Introduction

This commentary analyzes the Second Circuit’s summary order in Jose Leonel Deleg‑Penaranda v. Garland, No. 22‑6047 (2d Cir. Dec. 4, 2024), denying a petition for review from a Board of Immigration Appeals (BIA) affirmance of an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

The petitioner, a native and citizen of Ecuador, claimed fear tied to political conflict involving Alianza PAIS and his support for the Pachakutik platform. The IJ denied asylum as untimely and concluded that withholding and CAT were unsupported due to a failure to provide readily available corroboration. The BIA affirmed without opinion, and the Second Circuit reviewed the IJ’s decision directly.

Two core legal issues dominate the order:

Whether alleged “extraordinary circumstances” excused the late filing of the asylum application; and
Whether the IJ permissibly required corroborating evidence (particularly from close family) for the withholding and CAT claims, and whether the record compelled a finding that such corroboration was unavailable.

II. Summary of the Opinion

The Second Circuit denied the petition for review. It held that:

Asylum timeliness: The petitioner did not show extraordinary circumstances excusing the one‑year filing deadline. The IJ did not apply the wrong legal standard, overlook material facts, or mischaracterize the record. The petitioner’s age (19), lack of funds for new counsel, a venue transfer, and generalized claims about notice did not compel a legal conclusion of “extraordinary circumstances,” particularly where the petitioner had prior counsel, parental assistance, and acknowledged knowledge of the one‑year deadline.
Withholding of removal and CAT: The IJ reasonably required corroboration and identified specific, reasonably available sources—especially letters/testimony from parents and siblings and effort to obtain a police report. The petitioner’s explanations for not producing such evidence were inadequate. Because the same factual core underpinned both withholding and CAT, the corroboration failure was dispositive for both. General country-condition reports about corruption and impunity in Ecuador did not suffice to meet the CAT standard.

III. Detailed Analysis

A. Jurisdiction and Review Standards

Because the BIA affirmed without opinion, the Second Circuit reviewed the IJ’s decision as the final agency action. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 323 (2d Cir. 2006). Factual findings are reviewed for substantial evidence, with administrative findings deemed conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. 8 U.S.C. § 1252(b)(4)(B); Yanqin WENG v. HOLDER, 562 F.3d 510, 513 (2d Cir. 2009).

Timeliness of asylum applications and whether “changed” or “extraordinary” circumstances excuse delay are generally unreviewable, except for constitutional claims or questions of law. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). The Supreme Court recognizes that application of a legal standard to settled facts is a reviewable “question of law.” Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020); Wilkinson v. Garland, 601 U.S. 209 (2024). The Second Circuit reiterated that review remains unavailable if a petition simply contests factual findings or discretionary weighing without a cognizable legal or constitutional claim. Xiao Ji Chen, 471 F.3d at 329.

B. Asylum: The One‑Year Bar and “Extraordinary Circumstances”

Asylum applicants must file within one year of arrival. 8 U.S.C. § 1158(a)(2)(B). Exceptions exist for “changed circumstances” and “extraordinary circumstances.” § 1158(a)(2)(D). The implementing regulation provides non‑exhaustive examples of extraordinary circumstances, including serious illness or disability, legal disability (e.g., mental impairment, unaccompanied minor), ineffective assistance of counsel, maintenance of lawful status for a reasonable period, a timely but improperly filed application, and death or serious illness of counsel or a family member. 8 C.F.R. § 1208.4(a)(5).

The petitioner argued that his age, lack of notice of the consequences of late filing, the case transfer he requested, and financial constraints constituted extraordinary circumstances. The court’s key conclusions:

No overlooked material facts: The IJ explicitly considered age (19) and the venue transfer. Failure to mention every data point (e.g., resource constraints) does not mean they were ignored, especially where the record shows parental assistance and prior counsel. See Jian Hui SHAO v. MUKASEY, 546 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen, 471 F.3d at 336 n.17; MENDEZ v. HOLDER, 566 F.3d 316, 323 (2d Cir. 2009).
Notice and knowledge: The petitioner conceded his prior attorney advised him of the one‑year filing requirement. He claimed ignorance of the “consequences,” but provided no authority requiring the IJ to advise about consequences or recognizing such lack of notice as “extraordinary.” The regulation’s examples do not identify lack of notice as an extraordinary circumstance.
Commonplace hardships are not “extraordinary”: Youth, limited funds, venue transfers, and incomplete legal savvy often accompany removal proceedings. Where a represented 19‑year‑old has parental assistance and actual knowledge of the filing deadline, the IJ did not err in finding the delay unexcused. The order emphasizes that these facts, without more (e.g., legal disability, ineffective assistance, or comparable extremities), do not satisfy the exception.

Takeaway on Timeliness

For late asylum filings, this order underscores that:

Applicants bear the burden to prove the exception and the reasonableness of any ensuing delay. 8 C.F.R. § 1208.4(a)(5).
Knowledge of the deadline plus access to counsel and family support weighs heavily against a finding of “extraordinary circumstances.”
Purely factual quarrels with the IJ’s weighing of circumstances will not support judicial review absent a genuine legal or constitutional error.

C. Withholding of Removal and CAT: Corroboration Requirements

The petitioner’s withholding and CAT claims were grounded in alleged political violence and threats connected to Ecuador’s party politics (Alianza PAIS versus the Pachakutik platform). The IJ found the record lacked corroboration that should have been reasonably obtainable:

No statements from parents living in the United States who knew of the events, helped with his escape, and assisted in venue transfer;
No statements from siblings or other relatives in Ecuador who purportedly saw his post‑assault injuries;
No police report or documented efforts to obtain one; and
No documentation of party membership or activities—though, as the IJ noted, petitioner himself testified he was not a member, did not attend meetings, and “only agreed with the knowledge that [the Pachakutik party] offered.”

Under the REAL ID Act, even credible testimony may require corroboration if the IJ deems it reasonably necessary. 8 U.S.C. § 1158(b)(1)(B)(ii); see also § 1231(b)(3)(C) (applying corroboration standards to withholding). The Second Circuit reiterated the governing three‑step framework for corroboration denials:

The IJ must identify specific missing evidence and find it reasonably available;
The applicant must be given an opportunity to explain the omission; and
The IJ must assess the explanation provided. See Pinel‑Gomez v. Garland, 52 F.4th 523, 529 (2d Cir. 2022) (quoting Wei Sun v. Sessions, 883 F.3d 23, 31 (2d Cir. 2018)).

Here, the IJ methodically followed that framework, and the petitioner’s explanations—parents worked “far” away; “maybe [he] didn’t tell them” to write letters; indeterminate inability to contact friends; lack of follow‑up with police—did not compel a contrary conclusion on availability. The court emphasized the high level of deference to an IJ’s availability finding: a court may not reverse unless the record compels the conclusion that the corroborating evidence was unavailable. 8 U.S.C. § 1252(b)(4).

Application to CAT

The same factual shortcomings defeated the CAT claim. Generalized country conditions reports noting corruption or impunity are insufficient unless tied to the applicant’s particular risk profile. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). The cited State Department report also mentioned that civilian authorities maintained effective control over security forces and that the government investigated and prosecuted abuses—undercutting a theory of official acquiescence or systemic inability to protect the applicant in the circumstances alleged.

D. Precedents and Authorities Cited

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006): Establishes direct review of the IJ when the BIA affirms without opinion; reiterates limits on jurisdiction when a petitioner challenges factfinding or discretion without legal/constitutional claims; presumption that IJ considered all evidence absent compelling contrary indication.
Yanqin WENG v. HOLDER, 562 F.3d 510 (2d Cir. 2009): Standard of review—substantial evidence for facts, de novo for legal questions.
Statutes and Regulations: 8 U.S.C. § 1158(a)(2)(B), (D) (one‑year bar and exceptions); 8 C.F.R. § 1208.4(a)(5) (non‑exhaustive list of extraordinary circumstances); 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C) (corroboration requirement applies to withholding); 8 U.S.C. § 1252(b)(4) (deference on corroboration availability and substantial evidence standard); 8 C.F.R. § 1208.16(b), (c) (withholding/CAT standards).
Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020), and Wilkinson v. Garland, 601 U.S. 209 (2024): Clarify that applying a legal standard to established facts is a reviewable “question of law,” opening a narrow window for review of some mixed questions; nevertheless, does not authorize review of pure factual disputes.
Barco‑Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2007); MENDEZ v. HOLDER, 566 F.3d 316 (2d Cir. 2009): Examples of legal error—wrong standard applied, or material facts overlooked/mischaracterized in “subtle” determinations.
Jian Hui SHAO v. MUKASEY, 546 F.3d 138 (2d Cir. 2008); Zhi Yun GAO v. MUKASEY, 508 F.3d 86 (2d Cir. 2007): IJs need not expressly parse each piece of evidence; there is a presumption they considered the record.
Pinel‑Gomez v. Garland, 52 F.4th 523 (2d Cir. 2022); Wei Sun v. Sessions, 883 F.3d 23 (2d Cir. 2018): The three‑step corroboration analysis and the proposition that even credible testimony can require corroboration if reasonably available.
Mu Xiang Lin and Jian Xing Huang: CAT applicants must show more than generalized evidence of human rights issues; they must demonstrate that someone in their specific circumstances is more likely than not to be tortured, typically with evidence of official involvement or acquiescence.

E. Legal Reasoning Highlights

No legal error in the IJ’s timeliness framework: The IJ cited the controlling statutes and regulations, analyzed petitioner’s arguments through that lens, and did not misapprehend what counts as extraordinary. The Second Circuit rejected the claim that the IJ ignored or mischaracterized key facts.
Notice argument falls short: While the “extraordinary circumstances” list is non‑exhaustive, the petitioner’s admitted knowledge of the one‑year deadline, his representation by prior counsel, and parental assistance significantly undermined any legal claim that lack of notice of the “consequences” should excuse delay. The court found no authority compelling a contrary rule.
Corroboration was reasonably demanded: The IJ pointed to concrete, plainly accessible sources of corroboration—especially from immediate family members with direct knowledge or observations—and explained why their absence mattered. The petitioner’s reasons for omission were unpersuasive, and the court emphasized statutory deference to the IJ on availability determinations.
CAT evidentiary threshold not met: Generalized country conditions evidence did not establish that the petitioner, in his particular circumstances, would be more likely than not to be tortured with government acquiescence.

F. Impact and Practical Implications

Although non‑precedential, this order carries practical lessons likely to influence litigation strategy:

Asylum timeliness exceptions remain narrow in practice: Absent statutory or regulatory markers (serious illness, legal disability, ineffective assistance conforming to Lozada, etc.), typical hardships (youth, funds, venue change, generalized confusion) rarely qualify, especially where the applicant had actual knowledge of the deadline and some support network.
Family corroboration is “reasonably obtainable” in most cases: Letters or declarations from parents/siblings are expected when they know the narrative or observed injuries. Practitioners should anticipate that failure to gather such affidavits—without detailed, well‑documented efforts explaining why they are unobtainable—can be fatal to withholding and CAT claims.
Police documentation and documented efforts: If a report was made, applicants should pursue copies, and if inaccessible, document persistent efforts (requests to police, outreach to friends/family in country, certified mail, embassy assistance) to show unavailability. The absence of both the document and diligent effort weighs heavily against credibility sufficiency.
CAT requires specificity: Without individualized evidence tying risk of torture to official involvement or acquiescence, general reports of impunity or corruption will rarely suffice.
Appellate posture matters: On petition for review, casting factual disagreements as legal questions will fail if the agency applied the correct standards and engaged with the evidence. The deference commanded by § 1252(b)(4) is difficult to overcome.

IV. Complex Concepts Simplified

One‑year asylum bar: Asylum must be filed within one year of arrival unless the applicant proves changed or extraordinary circumstances and that any additional delay is reasonable.
Extraordinary circumstances (examples): Serious illness/disability, legal disability, ineffective assistance of counsel (with proper procedural showings), timely but improperly filed application, death/serious illness of counsel or family member. The list is non‑exclusive but practical application is strict.
Standard of review—substantial evidence: The court accepts agency factfinding unless the record compels a contrary conclusion; it is not enough that the court might have weighed facts differently.
Questions of law versus fact: Courts can review legal errors and mixed questions (applying law to established facts), but not pure factual disputes or discretionary weighing absent legal error.
Corroboration rule: Even if testimony is credible, the IJ can require corroboration if reasonably available. The IJ must identify what is missing, allow explanation, and assess it. Applicants must produce the evidence unless it is unavailable despite reasonable efforts.
Withholding of removal: Requires past persecution or a “clear probability” (more likely than not) of future persecution on a protected ground.
CAT relief: Requires showing that it is more likely than not the applicant would be tortured, with the involvement, consent, or acquiescence of a public official. General country conditions alone rarely suffice.

V. Conclusion

The Second Circuit’s summary order in Deleg‑Penaranda reaffirms two rigorous realities of removal defense practice: (1) late asylum filings will seldom be excused absent clear, qualifying extraordinary circumstances, especially where the applicant actually knew of the deadline and had access to counsel and familial support; and (2) corroboration matters—letters from close family and basic documentation efforts (such as police reports or proof of diligent attempts to obtain them) are “reasonably obtainable” in the ordinary case and may be demanded even where testimony is credible.

On CAT, the order echoes familiar doctrine: general evidence of corruption or impunity cannot substitute for individualized proof that the applicant personally faces a likelihood of torture with official acquiescence. For practitioners, the case offers a practical checklist—document the reasons for any delay in filing asylum with precision; collect family affidavits early; pursue police or medical documentation diligently; and tie country conditions tightly to the applicant’s specific facts. On appeal, identify genuine legal questions or procedural errors, not disagreements with the IJ’s fact‑finding.

While non‑precedential, the decision provides a clear, workmanlike application of the REAL ID corroboration regime and the narrowness of the one‑year asylum exception—guidance that will resonate in day‑to‑day immigration litigation.